HomeMy WebLinkAboutResolution - 4182 - Contract - Fischer International Systems - Electronic Mail System - 06_24_1993Resolution No. 4182
June 24, 1993
Item # 16
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to execute for and on behalf of the City of Lubbock a Contract by and
between the City of Lubbock and Fischer International Systems for an Elec-
tronic Mail System, attached herewith, which shall be spread upon the minutes
of the Council and as spread upon the minutes of this Council shall constitute
and be a part of this Resolution as if fully copied herein in detail.
Passed by the City Council this
ATTEST:
e ty o n n, City Secretary
APPROVED AS TO CONTENT:
ctor man, Purchasing Manager
APPROVED AS TO FORM:
uma is u. vanaiver, first Ass
City Attorney
DGV:ja/F1SCSER.RES.
D2-Agenda/June 16, 1993
No Text
JUN 10 '93 09:59 8067411069 LPL P.2
ADDENDUM TO:
MASTER SOFTWARE LICENSE AGREEMENT
BETWEEN
FISCHER INTERNATIONAL SYSTEMS CORPORATION
AND
CITY OF LUBBOCK
Section 6. Choice of Law is amended to read "Fischer International Systems
Corporation acknowledges that the City of Lubbock is a municipality of the
State of Texas and that this Agreement and all other documents, agreements and
contracts existing between the parties hereto, shall be governed by the laws
of the State of Texas and construed accordingly."
Section 7. Nondisclosure is amended to add the following paragraph.
Sec
By
Fi
Tit
Fischer International Systems Corporation acknowledges that the
City of Lubbock is subject to requests for information under the
Texas Open Records Act, Art. 6252, 17a V.A.T.S., and that the City
of Lubbock may receive requests for information about this
contract, other contracts existing between the parties, software,
and other materials furnished by the Fischer International• Systems
Corporation to the City. The City agrees that it will, in all
cases where information is requested and said information falls
within the terms Nondisclosure as used in this Agreement, apply to
the Attorney General of Texas for an opinion under section 7(c) of
the above Act to determine if such information requested is exempt
from public disclosure. In each case, however, the burden to
establish the exempt nature of the requested information shall be
on the Fischer International Systems Corporation. In any cases
where the City has requested an opinion from the Attorney General
of Texas as to whether or not requested information is public
under the above Act, it discharges its obligation to the Fischer
International Systems Corporation under the section titled
Nondisclosure found in this Agreement or any other agreement
existing between the parties. Fischer International Systems
Corporation further agrees to pursue the protection of its
property rights on its own -behalf and to bear all costs associated
therewith. In the event the City is notified by the Attorney
General that the requested information is public, it shall release
such information subject to any order of any court having
jurisdiction over the premises obtained by the Fischer
International Systems Corporation. In every case where Fischer
International Systems Corporation obtains such order, it shall
bear all costs and save the City r7llo�harmless from any
cost, attorney's fees or damages._ —�_____ 7
9. "Terms of Payment" the last sdntjrnce )ha]1 be
Vol
AN
Mpigr
/ 1
kip FA
AW
"LuD Mayor
Date: 3 Date: June 24, 1993
APPROVED AS TO CCNTENT:
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. Langston
No Text
Section 2. General Conditions
it is understood that Licensee by this Agreement and Schedule(s)
incorporated herein obtains no property interest in the Product(s).
If the license to Use Product(s) in Schedule A or other Schedule(s)
incorporated into this Agreement is terminated or cancelled for any
reason, Licensee's right and license to Use the Product(s) imme-
diately ceases. Licensee agrees that it will not Use the Product(s)
in any manner after the termination/ cancellation date, and Licensee
further agrees that all instructions, programs and procedures will.
be erased by the Licensee from the systems. Licensee will return
all documentation and storage media pertaining to the terminated .
Product(s) to Licensor. Licensee shall certify in writing to Licensor
by completing Licensor's 'Certification of Return or Destruction'
form within thirty (30) days after termination/cancellation that
Licensee has fully complied with this paragraph.
Section 3. Grant
Licensor hereby grants to Licensee and Licensee hereby accepts
from Licensor a nonassignable, nontransferable, nonexclusive right
and license, without the right to grant sublicenses, to Use the
Product(s) identified in Schedule A and other Product Schedule(s)
described in the Product Schedule(s). Notwithstanding the forego-
Ing restriction on Use on the Designated CPU, Licensee may use the
Product(s) on other than the Designated CPU in the following cir-
cumstances: (1) If the Designated CPU cannot be used because of
equipment or software malfunctions. Licensee may temporarily Use
the Product(s) on another central processing unit; or (II) if the Des-
ignated CPU is replaced by Licensee, Licensee may designate a
successor Designated CPU and Use the Product(s) on that central
processing unit, provided that Licensee gives Licensor written no-
tice of its desire to Use the Product(s) on the other central process-
Ing unit and Licensor gives written consent (which shall not be
unreasonably withheld) to Use the Product(s) on such other central
processing unit.
Section 4. Term
More than one Product Schedule may be incorporated into this
Agreement and each Product Schedule and the terms and condi-
tions of this Agreement shall constitute a separate agreement which
is independent from other agreements which incorporate other
Product(s) into this Agreement.
Usage of the Product(s) may be extended to additional CPUs and
installations in accordance with Licensor's prices, terms and condi-
tions in effect at that time, by execution and acceptance of additional
Schedule(s). Use of the Product(s) is limited to those releases of
operating systems, components and software defined in the Sched-
ule executed for the Product.
This License is effective from the date it is accepted by Licensor
and shall remain in force until the conclusion of the License period
as so described in the attached Schedule(s) under 'License Period'.
At the end of the license period, the lease will be automatically re-
newed for an additional twelve (12)-month period in accordance with
licensor prices In effect at that time, unless Licensee notifies
Licensor, in writing ninety (90) days in advance of the expiration
date. Licensor or Licensee upon ninety (90) days written notice,
may discontinue this license if the other party fails to comply with
any of the terms and conditions of this License. Notice of discontin-
uance of any license will be notice of discontinuance of optional
material obtained in connection with such license.
Section 5. Other Provisions
This Agreement and the Product Schedule(s) incorporated herein
constitute the entire agreement between the parties for a license to
Use the Product(s) defined in the Product Schedule(s) and will be-
come binding upon Licensor when signed by an authorized officer
of Licensor. No representation or statement not expressly con-
tained in this Agreement or any Product Schedule(s) incorporated
herein or other writing signed by a duly authorized representative
of each party, will be binding upon either party. This Agreement,
and all rights and obligations of Licensor hereunder, may be as-
signed, pledged, transferred, or otherwise disposed of, either in
whole or in part, without notice, provided that such assignment will
not impair any of the rights of Use of the Product(s) hereunder. No
rights or obligations pertaining to the Use of the Product(s) here-
under may be assigned by Licensee. Licensee understands that,
except as provided in Section 12 hereof, Licensor may develop and
market new or different data processing programs which may use
part or all of the Product(s) licensed under this Agreement and
which may perform all or part of the functions performed by the li-
censed Product(s). Licensor shall be permitted to use Licensee's
name in any press release, advertising or materials distributed to
customers or prospective customers. Nothing in this Agreement
gives Licensee any rights with respect to such new or different data
processing programs, except as may be provided in Section 12
hereof.
Section 6. Choice of Law
This Agreement shall for all purposes be deemed.subject to the
laws of the State of Florida.
Section 7. Nondisclosure
Any and all confidential or proprietary information communicated
to Licensee, either before or after execution of this Agreement, will
be regarded as disclosed in strict confidence and none of such in-
formation shall be disclosed by Licensee without prior written con-
sent of Licensor. Licensee shall not remove or destroy any
proprietary markings or proprietary legends on or contained within
the Product(s) and any related materials.
Licensee agrees not to provide 6r otherwise make available any
Product(s) in any form to any person other than Licensee's person-
nel. in no event will a Product(s) be made available on a
timesharing basis to outside users without the prior written consent
of Licensor. Licensee shall not reverse engineer, reverse assem-
ble, reverse compile or decompile the Product(s) in whole or in part.
Licensee agrees that all information relating to the Product(s), is
confidential and proprietary to Licensor and Licensee agrees that it
will hold in trust and confidence all such information and will not use
said information except as may be permitted by the terms of this
Agreement. Licensee also agrees that any confidential and propri-
etary information pertaining to the,Product(s) will not be disclosed
to anyone other than those employees of Licensee who require it in
order to effect Use of the Product(s), licensed hereunder. Obli-
gations of nondisclosure shall not extend to information or data re-
lating to the Products) which (1) are now available to the general
public, or later become available to the general public by proper
acts of other parties; or (2) are hereafter furnished to Licensee by a
third party as a matter of right and without restriction of disclosure.
In addition, Licensee agrees to employ reasonable procedures for
preserving the confidentiality of all information. received on the
Product(s), which shall include securing by instruction, agreement
or otherwise the commitment of those employees of Licensee hav-
ing access to the Product(s) to protect the confidentiality of the
Product(s) in accordance with Licensee's obligations to protect the
confidentiality of the Product(s). The nondisclosure obligations of
this Agreement shall survive and continue after termination of this
Agreement, any Product Schedule(s) incorporated into this Agree-
ment and any other agreements, relating to the Product(s) that the
parties ,may execute, and shall bind Licensee's legal represen-
tatives, successors and assigns.
Section 8, Liability
terials and taxes based on net Income. '. Service charges, in the
maximum amount permitted by applicable taw shall be made on
p a st idu e accounts.• ;
t Licensor warrants that the Product(s) and any enhancements
thereto, do do not And will not violate or infringe any United
t
i,States patent, trademark; trade secret; copyright, or similar right.
I'icensor hereby agrees�to indemnity, protect, and hold the Licensee
Section 10. Remedies
atarmless from all claims,'suits or actions, losses, damages; judge-
menu costs an coral
s s be ned for An infringe -
P y
[ ?.Iment of patent, ademark, trade secret or copyright laws provided
g
i
Ifs Licensee materially breaches any term of this Agreement, and,
I 'let a Licenseet or
l O gives:prompt written notice,of any suit to Licensor
m the event such breach is caused by Licensee failing to make any
to ensure the' opportunity to -take over, settle, ordefend such action,
payment, required herein by this Agreement and in the event such
p.,
i,t arm dr:Buh_through cbunsei at Licenser's sole expense; and (b)
breach is not corrected by Licensee making the required payment
tacensot','shall have sole control of the defense of Any action on such
within ten (10) days following the giving of notice by Licensor of such -
;Claim and all negotlations for its settlement or compromise. Should
breach, Licensor may (a) withhold and suspend any and all rights
"
lfhe Protluot(s) becorrl or In Licensee's opinion likely to become,
of Licensee pending correction of the -breach `or'(b) at Licenser's
I I� the sutijeet of a claim of Infringement, Licensor,may, at its option
option, terminate this Agreement in whole or in pant snd anyor all
I, and expense,, either (q procure for Licensee the tight to continue to
Product tichedute(s) incorporated herein: Licensee's obligation to
F 4Use ihe'Oroduct(s) 'as contemplated hereunder, or (11) replace or
pay all accrued fees and cliarges shall survive the termination of
f
a *: of ify the'Product(s) tp make Its Use hereunder noninfringing. If
this Agreement. ;in addition to damage otherwise recoverable by
r fleither Qption is reasonably available to Licensor, then the license
L,Fensor for Licensee's breach of this Agreement, Licensor shall be
i 1q the affected Products) may be terminated at the option of either
1
entitled to recover: an amount equal to the revenues and any other
a
pa id further obligation Or Iiability,other than as pro-
it hsreto iv
fii►Ided in Sections 2 and 71,with regard to termination/cancellation.
consideration ;that Licensee receives as 'a result of a breach of this
Agreemeni No remedy referred to in this Section: is Intended to be
s
+,
r
I �acensor'=shall have not liability for any claim, suit yr action for in-
e lusive, and each such remedy shall be cumulative and in addl-
1
.
I IIl:fringernent based upon etther Licensee's or combination of the
tiiiri to any other remedy herein or otherwise available to Licensor
use
lill'hroduct(s),;.wlth Product(e) or data of the type for, which the
at Law or In equity.
jk rodud(s) were neither designed nor ,intended, or Licensee's use
brf other than curt
6r4ha ur ent unaltered version of the Product(s) If such
In would have been avoided by the use of a current unal-
"
tired
Vera on of the i Product(s). Licensee agrees that, except as
Section 111. Notice
tl
provided'
in this Section 6 with respect to infringement, Licensoe's
{ r
R illiab If airy, shall not exceed the fees paid to Licensor
,
;by Licensee for use of the Product(s) Under this Agreement. In no
by
Any notice or other communication required or permitted here-
I,LiMnt shall Licensor have any liability for'' Ipss or damage arising
under shall be given in writing to the other, party at the address
�I'trgm llsa by licensee of Product(s) which, Include modifications of
listed on the first page of this Agreement, or at such other address
r ,pha`Product(s) if such Modifications were not: made by Licensor. No
as shall be given by either party to the other in writing. Such, notice
�ilaction, t'egardless of form, arising out any transaction under this :
shall be deemed to have been. given when delivered via certified
i Agreement may be,brought by either party more than one (1),year
mail with return receipt requested. Unless otherwise notified in
° latter pyre injured party has knowledge of the, occurrence which gives
writing; all information on the Product (s) will be sent to Licensee at
I rise to file cause of such action.
the address first written above.
14 FOREGOING �ARAANTIES ARE IN LIEU OF ALL OTHER WAR-
i
i .RANTI EXPREED;OR IMPLIED, INCLUDING WITHOUT LIMiTA-
',WARRANTY
1' "TION ;ZANY IMPLIED OF #AERCHANTABiLfTY OR
Section 12 :Maintenance and Program Modifications
"
.
3 'FITNESS FOR A PARTICULAR PURPOSE.
i
f
I ,
A. Except with respect to Products) licensed on a perpetual
basis Licensor will:
I �' .EXCEPT AS SPECIFIED IN THIS LIABILITY SECTION OF THIS
t
ALGREEMENT. LICENSOR SHALL NOT 13E:LIABLE FOR:ANY LOSS
!�R iidFilACiE THAT MAY ARISE THROUGH THE'USE'R'Y LICENSE E
/. ' Supply i temporary fix or make a reasonable attempt to make
,
IIi,A1= THE PRODUCT(S), INCLUDING WITHOUT LIMITING THE GF�IER-
an emergency bypass to the problem, !f the Product(s) g O' yields '
incorrect Licensor
'
} lIILiTY; OF'THE FOREGOING, ANY INDIRECT,' SPECIAL OR CONSE-
results and ,if diagnoses the problem as a
defect In a current, unaltered release of the Product(s). How-
"I I,
QUEN1 {AL DAMAGE, IN CONNECTION WITH OR ARISING FROM THE
*URN(SFiING, PERFORMANCE, OR USE OF THE PRODUCTS) PRO-
ever, if Licensee has modil`ied the Product(s), Licensor may at
1
a
: .
1fIDED HEREIN,
�
its discretion require licensee to demonstrate that any`mal-
function of the Product(s) was not caused by Licensee's mod -
r
, t
Ification. Correction of malfunctions in Products) caused by
Licensee's modification to Product(s) or use ' iof other than a
t l
r
current release of Product(s) are not covered under the
4
Section 9. Terms of Payment
standard maintenance supplied by Licensor, and will require
q
payment by Licensee of a charge computed at Licensor's then
I
I i
current consulting rate.
Ail invoiced felts will be due and payable In.net U.S. dollars within
I) ;
thirty (30) ldays following the receipt of Licensoe's invoice. Charges
br,partial based thirty
2. - Provide Licensee, at no cost; program corrections to modify
it
month's use will be prorated on a (30)-day
or correct existing errors in the Product(s), as said corrections
r +
a ;
•=nbhth There, shall be added to any charges under this Agreement
-
( d ani is equal to any taxes, however designated, now or hereafter,
become known to Licensor. However, Licensor does not rep-
resent or warrant that all errors or program defects will be
it ;I
i <ey�ed
prdpert)r
qr based on such charges, exclusive, however„ of personal
taxes the licensed optional ma-
corrected. If onsite assistance is required and the problem is
failure of Product(s)
assessed on programs or
the the to perform. to the specifications
V,t
3
contained in the current Product(s)' description, and Licensee
has installed the Product(s), including all current updates,
corrections will be made at no charge to Licensee. If the
problem is due to other causes, such as modifications to the
Product(s) by Licensee or failure of Licensee to have installed
all current updates, corrections will be made at Licensee's
expense, and at Licensor's then current consulting rates.
3. Provide modifications to the Product(s) to accommodate any
new operating system release, provided that the hardware in-
structions set and/or operating system remain upward- com-
patible and further provided that Licensor has available to it
all necessary Information regarding the operating system re-
lease and Licensor has Installed and operated said modifica-
tions for its own use or for the use of any customer of Licensor
of the time Licensee requests, in writing, said modifications.
Such modifications shall be provided to Licensee at no cost,
subject to subparagraph 12.A.4 herein below, as soon as pos-
sible after the Product(s)' update Incorporating such modifi-
cations is released for general distribution.
4. Provide Licensee with modifications, improvements and re-
finements to the Product(s).which are not separately priced or
marketed by Licensor. ,
5. Charge for consulting services provided by Licensor, except
In those instances where the service is covered under the
maintenance provisions of the Agreement, at Licensor's rate
in effect at the time the service is performed, plus all reason-
able expenses including, but not limited to, lodging, transpor-
tation and meals with a minimum charge of one (1) man -day
per service call.
B. With respect to Product(s) licensed under perpetual basis,
the maintenance described In Section 12A hereof shall be
provided free of charge during the first twelve months of this
Agreement. 'Extended Maintenance' for purposes of this
Agreement shall mean a continuation of the maintenance,
described in Section 12A beyond the initial twelve
(12)-month period.
For as long as Licensor is maintaining the Product(s), Ex-
tended Maintenance Is automatically provided and renewed
In minimum increments of twelve (12) months each at
Licensor's applicable standard maintenance charge then In
US-02/071g0
effect at the beginning of each such Extended Maintenance
period, which charge is payable at the beginning of each
new twelve (12) month period. Licensee may elect not to
avail itself of the Extended Maintenance service if Licensee
so notifies Licensor within ninety (90) days prior to the
commencement of any Extended Maintenance period.
Should Licensee decline Extended Maintenance but elect to
continue such service some time subsequent thereto, then
Licensee agrees to accept an Extended Maintenance
Agreement for a term of one (1) year commencing on exe-
cution thereof and, in addition thereto, to pay to Licensor an
amount equivalent to the pro -rate portion of Licensor's then
current standard maintenance fee for the elapsed interval
between the expiration of the last previous maintenance
period and the effective date of the renewed Extended
Maintenance Agreement.
Notwithstanding the foregoing. Licensee understands and
agrees that the complete and sole responsibility for mainte-
nance of the Product(s) remains with the Licensee, and
Licensee shall Install all fixes, problem solutions, modifica-
tions and other changes to the Product(s) provided by
Licensor hereunder.
Section 13. Severability
If any provision of this Agreement Is held Invalid or otherwise
unenforceable, the enforceability of the remaining provisions shall
not be impaired thereby.
Section 14. No Waiver
The waiver or failure of Licensor to exercise in any respect any
right provided for herein shall not be deemed a waiver of any further
right hereunder.
Section 15. Time of the Essence
Time is of the essence with respect to any time periods defined in
this Agreement.
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